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February 22, 2007

Pre-conviction speculation about possible sentencing term for Libby

As detailed in this Washington Post article, Lewis Libby's fate is now in the hands of a federal jury. The article has this mention of possible sentencing dynamics:

Libby, 56, is charged with five felonies: two counts of making false statements to FBI agents, two counts of perjury and one count of obstructing justice. He is not charged with the leak itself. If convicted of all charges, he would face a potential prison term of 1 1/2 to three years under federal sentencing guidelines, prosecutors outside the case have said.

Because the guideline are, of course, only advisory, and because lots of different aggravating and mitigating factors might be raised in Libby's case, I could see Libby's sentence being much lower or much higher than this estimate.

While we await a jury outcome, perhaps some readers would like to give US District Judge Reggie Walton additional sentencing advice about the possible application of the guidelines' advice and others 3553(a) factors.

Obviously, the Libby case is atypical in many ways, but is that alone a reason not to focus on the guidelines? Do 3553(a) factors suggest that a particularly lenient, or a particularly harsh, sentence for Libby would be appropriate? I am very interested in thoughtful musings while Libby's sentencing is still only a possibility.

Comments

If you accept the prosecution's theory of the case, then Libby was engaged in a persistent, deliberate, and long-running campaign to spread misinformation, and to conceal his own role in it.

Moreover, he was in a high government position, entrusted with our nation's most sensitive secrets. A seasoned veteran and a trained lawyer, he was certainly well aware of his duty to tell the truth. This was not a case of an isolated lie by someone who was momentarily blinded by the headlights.

All of these factors would tend to suggest a top-of-range or above-guidelines sentence. This assumes that the guideline truly reflects, as it purports to do, the "heartland" case. Libby seems to me above-the-heartland.

Posted by: Marc Shepherd | Feb 22, 2007 9:50:53 AM

Not directly related, but Daniel Heninger has a column on Scooter Libby on the opinion page of the WSJ today. Here is the (subscriber only) link:
http://online.wsj.com/article/SB117211554959415787.html?mod=opinion_main_featured_stories_hs

Posted by: Brian | Feb 22, 2007 11:11:30 AM

Here's another link that should work for nonsubscribers:

http://www.opinionjournal.com/columnists/dhenninger/?id=110009696

I'm surprised there hasn't been more discussion of materiality. You may recall this became a jury issue during the runup to Apprendi. See United States v. Gaudin, 515 U.S. 506 (1995). Once the prosecutor learned that Ms. Plame was not covert and Mr. Armitage at State was the leak, there would seem to be a strong argument that what Libby told the investigators was not material.

It seems the Government could make a case for a substantially higher sentence than the article mentions. They would say, he was trying to hinder an investigation into the disclosure of information identifying a covert agent by someone with access to classified information identifying a covert agent. Per the obstruction of justice guidelines, the
base offense level then becomes 30 - 6 = 24. In the 2003 sentencing table, level
24 is 51-63 months.

Posted by: William Jockusch | Feb 22, 2007 2:27:23 PM

Remember, too that in the Watergate burglary, Scirica gave McCord (one of the burglars with the most knowledge) a thirty-year sentence (statutory max, IIRC) for the burglary, as an inducement to him spilling the whole story. Which he did and for which he got a later, substantial reduction.

The same can obtain here.

Posted by: scribe | Feb 22, 2007 3:33:24 PM

My impression is that any sentence will be closer to 3 years than the 1.5 years cited in the article.

The base for obstruction and perjury is 14, plus 3 for interference in the administration of justice, plus 2 for abuse of a position of trust, which yields 19, or 30-37 months under the 2003 Guidelines.
The false statments base is 6 plus 2 for abuse of trust, which is 8, or 0-6 months.

This, of course, does not account for any departures or variances. Does this seem right to others?

Posted by: | Feb 22, 2007 4:00:33 PM

The more I look at this, the worse it looks for Libby. How about this:

According to CNN:

"Prosecutors contend Libby disclosed Plame's covert profession to reporters as part of a plan to discredit her husband . . . ."

So, if Libby is found guilty, the Government could ask the Judge to find (by a preponderance of the evidence) that Libby is guilty of disclosing Plame's identity. Assuming he had authorized access to classified information identifying her, that's level 30. (Or level 25 if he didn't). Then add 2 levels for obstruction of justice, and possibly 2 more levels for abusing a position of trust, and you are somewhere between level 27 and level 34, with possible sentences ranging form 70 to 188 months.

Posted by: William Jockusch | Feb 22, 2007 4:50:01 PM

It's obvious that few of you know more about the case than what you've read in the consistently wrong media reports.

Posted by: clarice | Feb 23, 2007 11:14:15 AM

Clarice-

Since we don't know (no one does) what, if anything, Libby will be convicted of, we can't make strong predictions. Even if we had that information, it's still hard to figure it out because we don't have the PSR and we don't know how the judge will use his discretion.

Posted by: | Feb 23, 2007 11:47:51 AM

"Applying the guidelines, I arrive at an offence level of 14 (17 if the obstruction/perjury confused the prosecutor a lot (§2J1.2(b)(2))) for each count.

Because Fitzgerald has indicated that all of the offences were part of a common criminal scheme, the number of counts does not affect the sentence. This corresponds to a recommended sentence of 15-21 (24-30) months."

Well, that was my take in April. I understand the argument for the abuse of position of trust argument.

Since the prosecuter has alleged that the four (mis)statements in two conversations were consistent with each other and designed to accomplish a single goal, why wouldn't the common criminal scheme provision apply?

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